Act No. 40

Public Acts of 2017

Approved by the Governor

May 23, 2017

Filed with the Secretary of State

May 23, 2017

EFFECTIVE DATE: August 21, 2017

STATE OF MICHIGAN

99TH LEGISLATURE

REGULAR SESSION OF 2017

Introduced by Senator Casperson

ENROLLED SENATE BILL No. 129

AN ACT to amend 1994 PA 451, entitled “An act to protect the environment and natural resources of the state; to codify, revise, consolidate, and classify laws relating to the environment and natural resources of the state; to regulate the discharge of certain substances into the environment; to regulate the use of certain lands, waters, and other natural resources of the state; to protect the people’s right to hunt and fish; to prescribe the powers and duties of certain state and local agencies and officials; to provide for certain charges, fees, assessments, and donations; to provide certain appropriations; to prescribe penalties and provide remedies; and to repeal acts and parts of acts,” by amending sections 3118, 9115, and 63201 (MCL 324.3118, 324.9115, and 324.63201), section 3118 as amended by 2015 PA 82, section 9115 as amended by 2011 PA 214, and section 63201 as added by 2004 PA 449, and by adding part 634.

The People of the State of Michigan enact:

Sec. 3118. (1) Except as otherwise provided in this section, until October 1, 2019, the department shall collect stormwater discharge fees from persons who apply for or have been issued stormwater discharge permits as follows:

(a) A 1-time fee of $400.00 is required for a permit related solely to a site of construction activity for each permitted site. The fee shall be submitted by the permit applicant with his or her application for an individual permit or for a certificate of coverage under a general permit. For a permit by rule, the fee shall be submitted by the construction site permittee along with his or her notice of coverage. A person needing more than 1 permit may submit a single payment for more than 1 permit and receive appropriate credit. Payment of the fee under this subdivision or verification of prepayment is a necessary part of a valid permit application or notice of coverage under a permit by rule.

(b) An annual fee of $260.00 is required for a permit related solely to a stormwater discharge associated with industrial activity or from a commercial site for which the department determines a permit is needed.

(c) An annual fee of $500.00 is required for a permit for a municipal separate storm sewer system, unless the permit is issued to a city, a village, a township, or a county or is a single permit authorization for municipal separate storm sewer systems in multiple locations statewide.

(d) An annual fee for a permit for a municipal separate storm sewer system issued to a city, village, or township shall be determined by its population in an urbanized area as defined by the United States Bureau of the Census. The fee shall be based on the latest available decennial census as follows:

(i) For a population of 1,000 people or fewer, the annual fee is $500.00.

(ii) For a population of more than 1,000 people, but fewer than 3,001 people, the annual fee is $1,000.00.

(iii) For a population of more than 3,000 people, but fewer than 10,001 people, the annual fee is $2,000.00.

(iv) For a population of more than 10,000 people, but fewer than 30,001 people, the annual fee is $3,000.00.

(v) For a population of more than 30,000 people, but fewer than 50,001 people, the annual fee is $4,000.00.

(vi) For a population of more than 50,000 people, but fewer than 75,001 people, the annual fee is $5,000.00.

(vii) For a population of more than 75,000 people, but fewer than 100,001 people, the annual fee is $6,000.00.

(viii) For a population of more than 100,000 people, the annual fee is $7,000.00.

(e) An annual fee of $3,000.00 is required for a permit for a municipal separate storm sewer system issued to a county.

(f) An annual fee for a single municipal separate storm sewer systems permit authorizing a state or federal agency to operate municipal separate storm sewer systems in multiple locations statewide shall be determined in accordance with a memorandum of understanding between that state or federal agency and the department and shall be based on the projected needs by the department to administer the permit.

(2) A stormwater discharge permit is not required for a municipality that does not own or operate a separate storm sewer system. The department shall not collect stormwater discharge fees under this section from a municipality that does not own or operate a separate storm sewer system.

(3) Permit fees required under this section are nonrefundable.

(4) A person possessing a permit not related solely to a site of construction activity as of January 1 shall be assessed a fee. The department shall notify those persons of their fee assessments by February 1. Payment shall be postmarked no later than March 15. Failure by the department to send a fee assessment notification by the deadline, or failure of a person to receive a fee assessment notification, does not relieve that person of his or her obligation to pay the fee. If the department does not meet the February deadline for sending the fee assessment, the fee assessment is due not later than 45 days after the permittee receives a fee notification.

(5) If a stormwater permit is issued for a drainage district, the drainage district is responsible for the applicable fee under this section.

(6) The department shall assess interest on all fee payments submitted under this section after the due date. The permittee shall pay an additional amount equal to 0.75% of the payment due for each month or portion of a month the payment remains past due.

(7) The department shall forward all fees and interest payments collected under this section to the state treasurer for deposit into the fund.

(8) The department shall make payment of the required fee assessed under this section a condition of issuance or reissuance of a permit not related solely to a site of construction activity.

(9) In addition to any other penalty provided in this part, if a person fails to pay the fee required under this section by its due date, the person is in violation of this part and the department may undertake enforcement actions as authorized under this part.

(10) The attorney general may bring an action to collect overdue fees and interest payments imposed under this section.

(11) If the permit is for a municipal separate storm sewer system and the population served by that system is different than that determined by the latest decennial census, the permittee may appeal the annual fee determination and submit written verification of actual population served by the municipal separate storm sewer system.

(12) A person who wishes to appeal either a fee or a penalty assessed under this section is limited to an administrative appeal, in accordance with section 631 of the revised judicature act of 1961, 1961 PA 236, MCL 600.631. The appeal shall be filed within 30 days of the department’s fee notification under subsection (4).

(13) As used in this section and section 3119:

(a) “Certificate of coverage” means a document issued by the department that authorizes a discharge under a general permit.

(b) “Clean water act” means the federal water pollution control act, 33 USC 1251 to 1376.

(c) “Construction activity” means a human-made earth change or disturbance in the existing cover or topography of land that is 5 acres or more in size, for which a national permit is required pursuant to 40 CFR 122.26(a), and which is described as a construction activity in 40 CFR 122.26(b)(14)(x). Construction activity includes clearing, grading, and excavating activities. Construction activity does not include the practice of clearing, plowing, tilling soil, and harvesting for the purpose of crop production.

(d) “Fee” means a stormwater discharge fee authorized under this section.

(e) “Fund” means the stormwater fund created in section 3119.

(f) “General permit” means a permit issued authorizing a category of similar discharges.

(g) “Individual permit” means a site-specific permit.

(h) “Municipal separate storm sewer system” means all separate storm sewers that are owned or operated by the United States or a state, city, village, township, county, district, association, or other public body created by or pursuant to state law, having jurisdiction over disposal of sewage, industrial wastes, stormwater, or other wastes, including special districts under state law, such as a sewer district, flood control district, or drainage district or similar entity, or a designated or approved management agency under section 208 of the clean water act, 33 USC 1288, that discharges to waters of the state. Municipal separate storm sewer system includes systems similar to separate storm sewer systems in municipalities, such as systems at military bases, large hospital or prison complexes, and highways and other thoroughfares. Municipal separate storm sewer system does not include separate storm sewers in very discrete areas, such as individual buildings.

(i) “Notice of coverage” means a notice that a person engaging in construction activity agrees to comply with a permit by rule for that activity. A notice of coverage is not required to include a copy of an individual permit issued under part 91 if the notice of coverage includes a copy of a permit for the construction activity issued under part 615, 625, 631, 632, or 634, along with any forms or diagrams pertaining to soil erosion and sedimentation control that were part of the application for that permit.

(j) “Permit”, unless the context implies otherwise, or “stormwater discharge permit” means a permit authorizing the discharge of wastewater or any other substance to surface waters of the state under the national pollutant discharge elimination system, pursuant to the clean water act or this part and the rules and regulations promulgated under that act or this part.

(k) “Public body” means the United States, this state, a city, village, township, county, school district, public college or university, or single purpose governmental agency, or any other body that is created by federal or state statute or law.

(l) “Separate storm sewer system” means a system of drainage, including, but not limited to, roads, catch basins, curbs, gutters, parking lots, ditches, conduits, pumping devices, or man-made channels, that has the following characteristics:

(i) The system is not a combined sewer where stormwater mixes with sanitary wastes.

(ii) The system is not part of a publicly owned treatment works.

(m) “Stormwater” means stormwater runoff, snowmelt runoff, and surface runoff and drainage.

(n) “Stormwater discharge associated with industrial activity” means a point source discharge of stormwater from a facility that is defined as an industrial activity under 40 CFR 122.26(b)(14)(i) to (ix) and (xi).

Sec. 9115. (1) Subject to subsection (2), a person engaged in the logging industry, the mining industry, or the plowing or tilling of land for the purpose of crop production or the harvesting of crops is not required to obtain a permit under this part. However, all earth changes associated with the activities listed in this section shall conform to the same standards as if they required a permit under this part. The exemption from obtaining a permit under this subsection does not include either of the following:

(a) Access roads to and from the site where active mining or logging is taking place.

(b) Ancillary activities associated with logging and mining.

(2) This part does not apply to a metallic mineral mining activity that is regulated under a mining and reclamation plan under part 631 or 634 or a mining, reclamation, and environmental protection plan under part 632, if the plan contains soil erosion and sedimentation control provisions and is approved by the department.

(3) A person is not required to obtain a permit from a county enforcing agency or a municipal enforcing agency for earth changes associated with well locations, surface facilities, flowlines, or access roads relating to oil or gas exploration and development activities regulated under part 615 or mineral well exploration and development activities regulated under part 625, if the application for a permit to drill and operate contains a soil erosion and sedimentation control plan that is approved by the department under part 615 or 625. However, those earth changes shall conform to the same standards as required for a permit under this part. This subsection does not apply to a multisource commercial hazardous waste disposal well as defined in section 62506a.

(4) As used in this section, “mining” does not include the removal of clay, gravel, sand, peat, or topsoil.

Sec. 63201. As used in this part:

(a) “Administratively complete” describes an application for a mining permit under this part that contains all of the documents and information required under this part and any rules promulgated under this part.

(b) “Affected area” means an area outside of the mining area where the land surface, surface water, groundwater, or air resources are determined through an environmental impact assessment to be potentially affected by mining operations within the proposed mining area.

(d) “Emergency management coordinator” means that term as defined in section 2 of the emergency management act, 1976 PA 390, MCL 30.402.

(e) “Fund” means the nonferrous metallic mineral surveillance fund created in section 63217.

(f) “Metallic product” means a commercially salable mineral produced primarily for its nonferrous metallic mineral content in its final marketable form or state.

(g) “Mining”, except as provided in subdivision (h), means the excavation or removal of more than 10,000 tons of earth material in a calendar year or disturbing more than 1 acre of land in a calendar year in the regular operation of a business for the purpose of extracting a nonferrous metallic mineral or minerals by 1 or both of the following:

(i) Removing the overburden lying above natural deposits of a mineral and excavating directly from the natural deposits thus exposed or by excavating directly from deposits lying exposed in their natural state.

(ii) Excavating from below the surface of the ground by means of shafts, tunnels, or other subsurface openings.

(h) Mining does not include an operation that is subject to part 634.

(i) “Mining area” means an area of land from which earth material is removed in connection with nonferrous metallic mineral mining, the lands on which material from that mining is stored or deposited, the lands on which beneficiating or treatment plants and auxiliary facilities are located, the lands on which the water reservoirs used in the nonferrous metallic mineral mining process are located, and auxiliary lands that are used in connection with the mining.

(j) “Mining permit” means a permit issued under this part for conducting nonferrous metallic mineral mining and reclamation operations.

(k) “Nonferrous metallic mineral” means any ore or material to be excavated from the natural deposits on or in the earth for its metallic content, but not primarily for its iron or iron mineral content, to be used for commercial or industrial purposes.

(l) “Nonferrous metallic mineral operator” or “operator” means a permittee or other person who is engaged in, or who is preparing to engage in, mining operations for nonferrous metallic minerals, whether individually or jointly, or through agents, employees, or contractors.

(m) “Permittee” means a person who holds a mining permit.

(n) “Postclosure monitoring period” means a period following closure of a nonferrous metallic mineral mine during which the permittee is required to conduct monitoring of groundwater and surface water.

(o) “Stockpile” means material, including, but not limited to, surface overburden, rock, or lean ore, that in the process of mining and beneficiation or treatment has been removed from the earth and stored on the surface. Stockpile does not include materials that are being treated in the production of metallic products and the metallic product that has been produced by that operation.

(p) “Tailings basin” means land on which is deposited, by hydraulic or other means, the material that is separated from the metallic product in the beneficiation or treatment of minerals and includes any surrounding dikes constructed to contain the material.

PART 634 SMALL NATIVE COPPER MINES

Sec. 63401. As used in this part:

(a) “Administratively complete” refers to an application for a mining permit under this part that includes the fee and all of the documents and other information required under this part and any rules promulgated under this part.

(b) “Conformance bond” means a surety bond that has been executed by a surety company authorized to do business in this state, cash, a certificate of deposit, a letter of credit, or other security filed by a person and accepted by the department to ensure compliance with this part or rules promulgated under this part.

(d) “Fund” means the small native copper mine surveillance fund created in section 63415.

(e) “Life of the mine” means the period from initiation of mining activities through the completion of reclamation.

(f) “Mine” or “mining” means an operation to excavate or remove earth material that generates not less than 10,000 tons and not more than 75,000 tons of waste rock in a calendar year or disturbs not less than 1 acre and not more than 10 acres of land in a calendar year in the regular operation of a business for the primary purpose of extracting native copper by 1 or both of the following:

(i) Removing the overburden lying above natural deposits of native copper and excavating directly from the natural deposits thus exposed or by excavating directly from deposits lying exposed in their natural state.

(ii) Excavating from below the surface of the ground by means of shafts, tunnels, or other subsurface openings.

(g) “Mining activity” means any of the following activities within a mining area for the purpose of, or associated with, mining:

(i) Clearing and grading of land.

(ii) Drilling and blasting.

(iii) Excavation of earth materials to access or remove ore.

(iv) Crushing, grinding, or separation activities.

(v) Reclamation.

(vi) Transportation of overburden, waste rock, ore, and tailings within the mining area.

(vii) Storage, relocation, and disposal of overburden, waste rock, ore, and tailings within a mining area, including backfilling of mined areas.

(viii) Construction of water impoundment and drainage features.

(ix) Construction of haul roads.

(x) Construction of utilities or extension of existing utilities.

(xi) Withdrawal, transportation, and discharge of water in connection with mining.

(h) “Mining area” means all of the following:

(i) Land from which material is removed by surface or open pit mining methods.

(ii) Land on which adits, shafts, or other openings between the land surface and underground mine workings are located.

(iii) Land on which material from mining is deposited.

(iv) Land on which crushing, grinding, or separation facilities are located.

(v) Land on which water reservoirs used in connection with mining are located.

(i) “Mining permit” or “permit” means a permit issued under section 63405 for conducting mining activities.

(j) “Native copper” means copper in its elemental form.

(k) “Operator” means a person that is engaged in or preparing to engage in mining activities, whether individually or jointly, or through agents, employees, or contractors, and that has overall responsibility for the mining activities.

(l) “Permittee” means a person that holds a mining permit.

(m) “Waste rock” means earth material that is excavated during mining, from which the economically recoverable native copper has been separated, and that is stored on the surface for 1 year or more. Waste rock does not include earth material from excavation or grading done in preparation for commencement of mining.

Sec. 63403. (1) The department shall administer and enforce this part. In addition to other powers granted to it, the department may promulgate rules it considers necessary to carry out its duties under this part.

(2) The department may enter at any reasonable time in or upon a mining area for the purpose of inspecting and investigating conditions relating to mining activities.

(3) Subject to subsections (4) and (5), a local unit of government shall not regulate or control mining or reclamation activities that are subject to this part, including construction, operation, closure, postclosure monitoring, reclamation, and remediation activities, and does not have jurisdiction concerning the issuance of permits for those activities.

(4) A local unit of government may enact, maintain, and enforce ordinances or regulations affecting mining if the ordinances or regulations do not duplicate, contradict, or conflict with this part and are reasonable in accommodating customary mining activities.

(5) Subsections (3) and (4) do not prohibit a local unit of government from conducting water quality monitoring.

Sec. 63405. (1) A person shall not engage in mining activities except as authorized by a mining permit issued by the department. A separate mining permit is required for each mine.

(2) An application for a mining permit shall be submitted by the operator to the department on a form prescribed by the department. The application shall include all of the following:

(a) A permit application fee of $5,000.00. The department shall forward the permit application fee to the state treasurer for deposit in the fund.

(b) Provisions for a conformance bond as described in section 63409.

(c) A mining and reclamation plan as described in subsection (3) that addresses mining activities proposed in the application.

(3) The mining and reclamation plan required in subsection (2) shall include all of the following:

(a) A map or maps showing the locations and dimensions of the following:

(i) Proposed adits, shafts, underground mine workings, and surface pits.

(ii) Proposed overburden, waste rock, and ore stockpiles.

(iii) Any crushing, grinding, or separation equipment that will be utilized.

(b) A description of the mining methods that will be utilized.

(d) A map and description of fencing or other techniques to minimize public safety hazards.

(e) Plans and schedules for reclamation of the mining area following cessation of mining activities. The plans and schedules shall address mining activities proposed in the application and provide for grading, revegetation, and stabilization that will do all of the following:

(i) Minimize soil erosion and sedimentation.

(ii) Protect public safety.

(iii) Establish conditions that promote future beneficial use and do not require perpetual care.

(f) Plans and schedules for baseline water quality sampling, which must be conducted before mining commences. Samples shall be collected from the existing water supply wells available for sampling and located within 1,320 feet of the proposed mining area. However, samples are not required from more than 3 such water supply wells. In addition, samples shall be collected from the nearest surface water body located within 1,320 feet of the proposed mining area, if any. The samples shall be analyzed for pH, copper, and nitrate using laboratory methods approved by the United States Environmental Protection Agency.

(4) Within 7 days after receiving an application for a mining permit, the department shall give notice in writing to the county and municipality where the mine is proposed to be located of the specific location of the proposed mine. Within 14 days after receiving an application for a mining permit, the department shall publish notice of the application in a newspaper of local distribution in the area of the proposed mine and shall post a copy of the application on its website.

(5) Subject to subsection (6), effective 14 days after the department receives an application for a mining permit, the application shall be considered to be administratively complete.

(6) If, before the date indicated by subsection (5), the department notifies the applicant that the application is not administratively complete, specifying the information or fee necessary to make the application administratively complete, the running of the 14-day period under subsection (5) is tolled until the applicant submits to the department the specified information or fee.

(7) Subject to subsection (8), the department shall grant or deny a mining permit within 45 days after an application is considered or determined to be administratively complete under subsection (5) or (6). If a mining permit is denied, the reasons shall be stated in a written report to the applicant.

(8) If the department determines that information in the application is insufficient to determine whether a permit may be granted, the department may request additional information or clarification from the applicant. The 45-day period under subsection (7) is tolled until the applicant submits the requested information.

Sec. 63407. (1) A mining permit is valid for the life of the mine. However, the department may revoke a permit if the permittee has not commenced mining activities covered by the permit within 3 years after the date of issuance of the permit.

(2) The department may terminate a mining permit upon request of the permittee if the department determines that the permittee has complied with all applicable provisions of this part.

(3) A mining permit may be transferred with approval of the department. The person seeking to acquire the permit shall submit a request for transfer of the permit to the department on forms provided by the department. The person acquiring the permit shall accept the conditions of the existing permit and adhere to the requirements set forth in the approved mining and reclamation plan and provide a conformance bond as set forth in section 63409. Pending the transfer of the existing permit, the person seeking to acquire the permit shall not operate the mine.

(4) A mining permit shall not be transferred to a person who has been determined by the department to be in violation of this part, rules promulgated under this part, or a condition of a permit issued under this part, until the person acquiring the permit has corrected the violation or the department has accepted a compliance schedule and the person that will acquire the permit has entered into a written consent agreement to correct the violation.

(5) If the permittee has been notified by the department of a violation of this part, rules promulgated under this part, or a condition of the permit issued under this part at the mining area involved in the transfer, the mining permit shall not be transferred to a person until the permittee has corrected the violation or the person that will acquire the permit has entered into a written consent agreement to correct the violation.

(6) A mining permit may be amended upon submission to the department of a request by the permittee. The department shall determine whether the requested amendment constitutes a significant change to the mining and reclamation plan. If the department determines that the requested amendment constitutes a significant change, the department shall submit the request for amendment to the same review process as provided for a new permit application in section 63405(4) to (8). If the department determines that the requested amendment does not constitute a significant change, the department shall approve the request within 14 days after receiving the request.

Sec. 63409. (1) For each mine, an operator shall maintain a conformance bond in the amount of $50,000.00 during mining activities and until the department determines that all reclamation has been completed in compliance with the mining permit.

(2) If an operator violates subsection (1), the department may order immediate suspension of mining activities, including the removal of native copper from the site.

Sec. 63411. (1) An operator shall comply with all other applicable requirements of this act.

(2) An operator shall conduct mining activities at a mining area in conformance with the approved mining and reclamation plan.

(3) If mining activities are suspended for a continuous period exceeding 240 days, the operator shall maintain, monitor, and secure the mining area and shall conduct any interim sloping or stabilizing of surfaces necessary to protect the environment, natural resources, or public health and safety in accordance with the mining permit.

(4) Subject to subsection (5), an operator shall begin final reclamation of a mining area within 3 years after the date of cessation of other mining activities and shall complete reclamation within the time set forth in the mining and reclamation plan approved by the department under section 63405.

(5) Upon written request of the operator, the department may approve an extension of time to begin or complete final reclamation.

(6) Compliance with this part does not relieve a person of the responsibility to comply with all other applicable state or federal statutes or regulations.

Sec. 63413. (1) For purposes of surveillance, monitoring, administration, and enforcement of this part, an operator shall pay the department by February 15 each year an operating fee of $5,000.00 for each mine where mining activities were ongoing as of December 31 of the previous year. The fee is due each year until the mining activities cease and the department has released the conformance bond.

(2) The department shall assess a penalty equal to 2% of the amount due against the operator for each month or part of a month during which an operating fee has not been paid after the due date.

(3) The department shall forward all annual operating fees and penalties collected under this section to the state treasurer for deposit in the fund.

Sec. 63415. (1) The small native copper mine surveillance fund is created within the state treasury.

(2) The state treasurer may receive money or other assets from any source for deposit into the fund. The state treasurer shall direct the investment of the fund. The state treasurer shall credit to the fund interest and earnings from fund investments.

(3) Money in the fund at the close of the fiscal year shall remain in the fund and shall not lapse to the general fund.

(4) The department shall expend money from the fund, upon appropriation, only for surveillance, monitoring, administration, and enforcement under this part.

Sec. 63417. (1) If the department determines that an operator has failed or neglected to perform reclamation in conformance with this part or rules promulgated under this part, the department shall give notice of this determination, in writing, to the operator and to the surety executing the conformance bond under section 63409. The notice of determination shall be served upon the operator and surety in person or by registered mail. If the operator or surety fails or neglects to properly commence the required reclamation within 90 days after the date of personal service or mailing of the notice or fails to proceed with reclamation at a rate that will conclude the reclamation within the period specified in the mining and reclamation plan, the department may enter into and upon any private or public property on which the mining area is located and upon and across any private or public property necessary to reach the mining area and conduct necessary reclamation, and the operator and surety are jointly and severally liable for all expenses incurred by the department. The department shall certify to the operator and surety the claim of this state in writing, listing the items of expense incurred in reclamation. The claim shall be paid by the operator or surety within 30 days. If the claim is not paid within that time, the department may bring suit against the operator or surety, jointly or severally, for the collection of the claim in any court of competent jurisdiction in Ingham County.

(2) The department may order immediate suspension of any mining activities if the department finds that there exists an emergency endangering the public health and safety or an imminent threat to the natural resources of this state.

(3) An order suspending mining activities under subsection (2) shall be in effect until the endangerment to the public health and safety or the threat to the natural resources has been eliminated, but not more than 10 days. To extend the suspension beyond 10 days, the department shall issue an emergency order to continue the suspension of mining activities and shall schedule a hearing as provided by the administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to 24.328. The total duration of the suspension of activities shall not be more than 30 days.

(4) At the request of the department, the attorney general may institute an action in a circuit court of the county in which the mining area is located for a restraining order or injunction or other appropriate remedy to prevent or preclude a violation of this part or a rule promulgated under this part.

Sec. 63418. Mining of earth material that has significant acid-forming or leachable characteristics is not subject to this part.

Enacting section 1. This amendatory act takes effect 90 days after the date it is enacted into law.

This act is ordered to take immediate effect.

Secretary of the Senate

Clerk of the House of Representatives

Approved

Governor